Education and Substantial Equivalence Language, New York State – Comment Submission Period

Comments Should be Submitted to:

Christina Coughlin, NY Education Department, SORIS, 89 Washington Avenue, Room 1075 EBA, Albany, NY 12234, (518) 474-7206, email:seregcomments@nysed.gov

Substantially Equivalent Instruction for Nonpublic School Students

NY-ADR

7/3/19 N.Y. St. Reg. EDU-27-19-00010-P
NEW YORK STATE REGISTER
VOLUME XLI, ISSUE 27
July 03, 2019
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-27-19-00010-P

Substantially Equivalent Instruction for Nonpublic School Students

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 130 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207, 215, 305(1), (2), 3204(1), (2), (3), 3205(1), 3210(2) and 3234
Subject:
Substantially Equivalent Instruction for Nonpublic School Students.
Purpose:
Provide guidance to local school authorities to assist them in fulfilling their responsibilities under the Compulsory Education Law.
Substance of proposed rule (Full text is posted at the following State website: http://www.counsel.nysed.gov/rules/full-text-indices):
The purpose of the proposed regulation is to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The intent of the substantial equivalency process is to ensure that all students receive the education to which they are entitled under the law. The substantial equivalency process must be a collaborative effort between LSAs and nonpublic schools.
The proposed regulation requires LSAs to make substantial equivalency determinations for all nonpublic schools within their geographical boundaries, except registered high schools, state-approved private special education schools, state-operated and state-supported schools, which are already subject to Department review, and nonpublic schools for which the Commissioner is required to make a substantial equivalency determination pursuant to Education Law § 3204(2)(ii)-(iii). Pursuant to Education Law § 3204(2)(ii)-(iii), the Commissioner is responsible for making final determinations on substantial equivalency reviews for nonpublic schools that meet the enumerated statutory criteria.
For schools that meet the statutory criteria for a Commissioner’s determination, LSAs must review such schools for substantial equivalency and forward a recommendation and supporting documentation to the Commissioner for his/her final determination.
The Department is proposing the following recommended timelines:
• New nonpublic schools that open on or after the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made within three years of when the nonpublic school commences instruction and regularly thereafter.
• Existing nonpublic schools that are operating on the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made by the end of the 2022-2023 school year or as soon as practicable thereafter and regularly thereafter.
The proposed regulation also recommends regular contact and communication between public and nonpublic schools, in an effort to keep each other informed of important updated information.
The proposed regulation states that substantial equivalency reviews and determinations should be conducted in a flexible and inclusive manner and should be the result of a collaboration between the LSA and the nonpublic school. Five core principles, defined in the regulation, are essential to the review process: objective, mindful, sensitive, respectful, and consistent.
The proposed regulation sets forth a recommended procedure for substantial equivalency reviews. Prior to commencing a substantial equivalency review, the LSA, after consulting with the nonpublic school, shall determine whether the Commissioner is responsible for making the final determination pursuant to Education Law § 3204(2)(ii) or (iii), or whether the LSA is responsible for making such final determination. Except for registered nonpublic high schools, state-approved private special education schools, state-operated schools and state supported schools, the superintendent or his/her designee (which may include a BOCES, where authorized under § 1950 of the Education Law) should review all nonpublic schools in the LSA’s geographic boundaries, including nonpublic schools that meet the criteria for a Commissioner’s determination, and, in conducting such reviews, the LSA must use the criteria outlined in the proposed regulation. For schools that meet the criteria for a Commissioner’s final determination, the LSA conducts the review using the appropriate criteria and makes a recommendation to the Commissioner for his/her final determination.
The proposed regulation recommends that a substantial equivalency review should be conducted by a team of at least two individuals, including individuals with expertise in instruction and the ability to communicate well with the nonpublic school community.
The proposed regulation sets forth a recommended procedure for LSAs to render determinations regarding substantial equivalency. If there are concerns about the substantial equivalency of the instruction, the proposed regulation recommends, among other things, that the LSA and nonpublic school work collaboratively to develop a clear plan and timeline, including benchmarks and targets, for attainting substantial equivalency in an amount of time that is reasonable given the concerns identified. The proposed regulation indicates that services must continue to nonpublic school students during any period for attaining substantial equivalency.
If, after the consultation described above, the concerns identified are addressed appropriately, the following steps should occur:
• the superintendent or his/her designee should inform the board of education in writing that the nonpublic school appears to be at least substantially equivalent.
• the LSA should send written notification to the administration of the nonpublic school and provide a letter for the nonpublic school to distribute to parents;
• the LSA must notify SORIS of the positive determination; and
• the superintendent or designee should share the positive finding with superintendents of school districts in which the nonpublic school’s students reside.
If, after the consultation described above, the concerns cannot be remedied or if the nonpublic school does not make the changes necessary to achieve substantial equivalency, the following steps should occur:
• The superintendent or designee should notify the board of education that the nonpublic school does not appear to be substantially equivalent, and the board of education will vote and make a final determination in a regularly scheduled, public board meeting.
• The LSA should notify nonpublic school administration of the date that the board of education will consider the matter of substantial equivalency.
• The nonpublic school should be provided an opportunity to present additional relevant materials and/or a written statement to the board of education prior to its determination.
• The LSA must provide written notification to the administration of the nonpublic school and the parents or persons in parental relationship to students attending the nonpublic school of such determination and that the students will be considered truant if they continue to attend that school.
• The board must provide a reasonable timeframe, giving due consideration to the statutory and regulatory timeframes for services to nonpublic school students, for parents or persons in parental relationship to identify and enroll their children in a different appropriate educational setting, consistent with Education Law § 3204.
• SORIS must be notified of the negative determination in a manner prescribed by the Commissioner.
• Required services to the nonpublic school and must continue until the end of the reasonable timeframe.
• Student records shall be managed consistent with section 104.2 of this Title.
Additionally, the proposed regulation requires LSAs to report the following information to SORIS by September 1, 2020 and each September 1 thereafter:
• List of all nonpublic schools within the LSA’s geographical boundaries.
• List of all nonpublic schools in LSA’s boundaries that are state-approved private special education schools, state-operated schools, and state-supported schools.
• List of all the nonpublic schools in the LSA’s boundaries that are registered high schools pursuant to 8 NYCRR 100.2(p).
• List of all the nonpublic schools that are in the LSA’s boundaries that are not state-approved private special education schools, state-supported schools, state-operated schools, or registered high schools and are subject to Commissioner’s review pursuant to Education Law § 3204(2)(ii)-(iii).
• A list of the remaining nonpublic schools identified in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination.
The proposed regulation also requires that, commencing on September 1, 2024 and each September 1 thereafter, LSAs must submit an attestation that they:
• Made a final substantial equivalency determination for each nonpublic school in their geographic area subject to their final determination, and
• Forwarded a substantial equivalency recommendation to the Commissioner for each nonpublic school in their geographic area that is subject to a final determination by the Commissioner.
The proposed regulation includes procedures for the Commissioner’s determination of substantial equivalency. For nonpublic schools for which the Commissioner is required to make a final determination, the LSA must conduct a review and forward its recommendation regarding substantial equivalency and all relevant documentation to support its recommendation to the Commissioner. The proposed regulation sets forth procedures for when a school subject to a Commissioner’s determination appears not to be substantially equivalent and for when the Commissioner renders a positive or negative substantial equivalency determination. Such procedures are similar to those described above for LSAs to follow when making a final determination.
The proposed regulation provides that, when making a substantial equivalency determination, an LSA, and the Commissioner, when he/she is responsible for making the final determination, must consider the following criteria:
• Instruction given only by a competent teacher.
• English is the language of instruction for common branch subjects.
• Appropriate programs for students who have limited English proficiency.
• Accreditation materials should be taken into account if a nonpublic school has been accredited within the last five years.
• Whether the instructional program in the nonpublic school incorporates instruction in the following subjects:
o during grades 1 through 6, mathematics, including arithmetic, science, and technology; English language arts; social studies; the arts; career development and occupational studies; health education, physical education, and family and consumer sciences. Instruction in these subjects may be integrated or incorporated into the syllabus or syllabi of other courses;
o during grades 7 and 8, mathematics (two units of study); English language arts (two units of study); social studies (two units of study); science (two units of study); career and technical education, wherein the unit of study requirement may be initiated in grade 5 (one and three-fourths units of study); physical education (similar courses of instruction to those required in public schools pursuant to section 135.4 of this Title); health education (one-half unit of study); visual arts (one-half unit of study); music (one-half unit of study); library and information skills, which may in incorporated or integrated into any other subjects (the equivalent of one period per week in grades 7 and 8); career development and occupational studies, which may be incorporated or integrated into any other subjects;
o during grades 9 through 12, instruction in English (four units of study); social studies (four units of study); mathematics (three units of study); science (three units of study); health (one-half unit of study); physical education (two units of study); the arts (one unit of study);
• Whether the nonpublic school meets other statutory instructional requirements, including requirements pursuant to Education Law §§ 305(52), 801, 803(4), 804, 806, 807, 808, 3204(3), (5); and 8 NYCRR §§ 100.2(c)(1), 100.2(c)(3)-(7), 100.2(c)(11).
• Pursuant to Education Law § 3204 for nonpublic elementary and middle schools subject to a Commissioner’s final determination pursuant to Education Law § 3204(2)(ii), the LSA, when making a recommendation and the Commissioner in his/her final determination, must take into consideration whether the school’s instructional program meets the criteria set forth in Education Law § 3204(2)(ii).
• For nonpublic high schools that meet the criteria for a Commissioner’s final determination pursuant to Education Law § 3204(2)(iii), the Commissioner and the LSA making a recommendation to the Commissioner will take into consideration whether the curriculum provides academically rigorous instruction that develops critical thinking skills in the school’s students, the outcomes of which, taking into account the entirety of the curriculum, result in a sound basic education.
The proposed regulation also sets forth the rights and responsibilities of parents and persons in a parental relationship to nonpublic school students, LSAs and nonpublic school leaders related to substantial equivalency determinations.
For the full text of the regulation, please refer to our website at http://www.counsel.nysed.gov/rules/full-text-indices.
Text of proposed rule and any required statements and analyses may be obtained from:
Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Christina Coughlin, NY Education Department, SORIS, 89 Washington Avenue, Room 1075 EBA, Albany, NY 12234, (518) 474-7206, email:seregcomments@nysed.gov
Public comment will be received until:
60 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Summary of Regulatory Impact Statement (Full text is posted at the following State website: http://www.counsel.nysed.gov/rulesandregs):
1. STATUTORY AUTHORITY:
Education Law 207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Education Law 215 authorizes the Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Education Law 305(1) empowers the Commissioner of Education to be the chief executive officer of the State system of education and the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Board of Regents. Education Law section 305(2) authorizes the Commissioner to have general supervision over all schools subject to the Education Law.
Education Law 3204(1) provides that minors required to attend upon instruction pursuant to the Compulsory Education Law may attend at a public school or elsewhere.
Education Law 3204(2) requires, among other things, that instruction may be given only be a competent teacher, English shall be the language of instruction, and that instruction in nonpublic schools must be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools. Paragraph (ii) of that section requires the Commissioner to make final substantial equivalency determinations regarding (1) nonpublic elementary and middles schools that are non-profit corporations, have a bi-lingual program, and have an educational program that extends from no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five thirty p.m. for grades four through eight, on the majority of weekdays and (2) nonpublic high schools that are established for pupils in high school who have graduated from an elementary school that provides instruction as described in Education Law 3204(2), are a non-profit corporation, have a bi-lingual program, and have an educational program that extends from no later than nine a.m. until no earlier than six p.m. on the majority of weekdays.
Education Law 3204(3) provides for required courses of study in the public schools and authorizes the State Education Department to alter such required subjects of instruction.
Education Law 3205(1) requires each child of compulsory school age to attend upon full time day instruction.
Education Law section 3210(2) provides the amount and character of required attendance for nonpublic school students, with the exception that a child may be permitted to attend for a shorter school day and/or year if the instruction received has been approved by the local school authorities as being substantially equivalent in amount and quality to that required by the Compulsory Education Law.
Education Law section 3234 gives the Commissioner authority to supervise enforcement of the Compulsory Education Law by withholding public school moneys for certain failures to enforce the Compulsory Education Law.

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Education in New York – Taxpayer Subsidizing Yeshiva Education Without Standards – PEARLS Statement

PEARLS: Statement on New Education Department’s Proposed Regulations

As the New York Department of Education continues to attempt to establish and enforce guidelines for private schools, PEARLS, which advocates for Frum Schools in NY has released the following statement:

The regulations proposed by the State Education Department disregard the concerns expressed by more than 1,000 private schools from every segment of the nonpublic school community.

The proposed regulations disregard the long history of success demonstrated by private schools across New York State, they undermine the choices made by parents who choose private schools for their children, and they substitute the education bureaucracy in Albany for the private school leadership sought by parents and students.

The regulations proposed today are nothing more than a repackaging of the guidelines that were opposed by the entire private school community last Fall and declared null and void by the Albany Supreme Court this Spring. It is disappointing that the State Education Department failed to engage in dialogue with private school leaders prior to issuing these proposed regulations.

We remain willing to work collaboratively with the State Education Department. But we will continue to oppose SED’s attempt to impose top-down mandates on hundreds of thousands of private school children across the State. These proposed regulations will not be any more successful than the failed and rejected guidelines they replaced. We therefore urge SED to work with the private school community in a manner that respects the success, autonomy, history and purpose of private schools.

The recreation of Jewish life and learning in the United States after the destruction of the Holocaust was nothing short of miraculous. In 1944, there were two dozen Jewish schools in New York, with no more than 5000 students. Today, there are 165,000 students enrolled in more than 400 Jewish elementary and high schools in New York. State regulations cannot be allowed to hinder our mission or hamper our growth.

 

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NYS Ed Department Framed Vaccination as a First Amendment Right – Whose Rights are at Stake?

State Education Department ordered Jewish school to accept unvaccinated kids

Amid a record-setting nationwide measles outbreak driven largely by New York cases, the state ordered a Long Island school to accept unvaccinated kids into its classes and after-school activities.

The Shulamith School for Girls in Cedarhurst says the state Education Department was wrong to twice overturn the school’s decision to bar Ilana and Nikolay Jinjihashvili’s two daughters after the parents sought a religious exemption to the vaccination rule.

The Jewish day school is now asking a federal judge to overturn Education Commissioner Mary­Ellen Elia’s orders, calling them “illegal, void and unenforceable.”

While the current measles outbreak has put the vaccination debate at the forefront of public health, the school is framing the dispute as a First Amendment fight.

“There are schools that have taken the position that under the school’s religious belief, as a matter of Jewish law, students should be vaccinated,” the school’s lawyer, Philip Kalban, told The Post. The parents may have a different and “sincere” belief about vaccinations, Kalban explained, “but they say it’s based on Jewish law, and our position is that Jewish law says just the opposite.”

The First Amendment comes into play because the school argues the state has no business interfering in a religious matter.

The case landed in Brooklyn federal court last week after the family sought to send their girls to an ­after-school art show and fundraiser but were blocked by the school.

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Yeshiva Education and Substantial Equivalency – Why not Meet Requirements or Forego Funding?

State education chief unveils retooled ‘substantial equivalency’ rules for private schools

Nancy Cutler, Rockland/Westchester Journal NewsPublished 3:33 p.m. ET May 31, 2019

State Education Commissioner MaryEllen Elia speaks with The Journal News Staff in White Plains March 18, 2019. Carucha L. Meuse, cmeuse@lohud.com

The New York State Education Department announced proposed regulations Friday for academic instruction at nonpublic schools, less than two months after its guidelines with similar goals were blocked by the State Supreme Court.

The issue focuses on enforcing state law requiring that secular studies at private schools — like math science, English and history — be “substantially equivalent” to what’s taught in public schools. Concern has been most focused on certain ultra-Orthodox and Hasidic Jewish yeshivas that advocates have reported fail to meet the law or prepare their students for employment and a solid economic future.

State Education Commissioner MaryEllen Elia initially issued new guidelines in November that were meant to update previously issued regulations for enforcing the law. But the court ruled in April that the Education Department failed to follow its own procedure for such specific changes.

The Education Department is classifying the effort as a change to regulations, not just guidelines. The path to new regulations includes a public comment period — lacking in the original process.

“Nonpublic schools are an important part of the educational landscape in New York State,” Elia said in a statement. “With the regulations, we will ensure that all students — no matter which school they attend — have the benefit of receiving the education state law says they must have. By following the State Administrative Procedure Act process, we are addressing the Court’s concerns.”

Some advocates had been pushing the state to adopt emergency regulations to enforce the “substantial equivalency” law, rather than launching a lengthier process. Naftuli Moster, the founder and executive director of Young Advocates for Fair Education, or YAFFED, said in a statement that the state was playing into the hands of groups that resist oversight of yeshivas.

“Instead of acting quickly to implement emergency regulations, NYSED has chosen a lengthy process which all but guarantees that in the 2019-2020 school year, tens of thousands of children will continue to be denied the education to which they are entitled by law,” the New City resident said.

Yeshiva education activist Naftuli Moster, who has been the topic of a lot of criticism and praise for his work with YAFFED, a nonprofit that’s pushing the state to ensure secular education is provided in yeshivas, discussed his work outside Rockland County Court House June 12, 2018 in New City. (Photo: Tania Savayan/The Journal News)

Also at issue is the state’s plan to allow inspections by the public school district to take place by the end of the 2022-2023 academic year. “That’s like saying ‘when you get around to it, but no rush,’ ” YAFFED responded.

The education equivalency issue mostly impacts New York City and the East Ramapo school district, which has scores of yeshivas in their boundaries.

Rockland Legislator Aron Wieder, D-Spring Valley, has been a strong critic of such oversight. Wieder, who is Hasidic, represents parts of Spring Valley. He has asserted that Elia “has bought into the narrative that is being peddled by people who have left the Orthodox community and only have hatred towards our community.”

The issue has caused much attention in New York politics. In 2018, the state budget was nearly derailed when Sen. Simcha Felder, D-Brooklyn, demanded language be inserted into the budget that would influence the way the state considered curriculum at certain yeshivas.

The proposed regulations more specifically spell out the ability for a private school to challenge the enforcement process in an effort to include “due process.” The guidelines also allow “for integrated curriculum that delivers content by incorporating more than one subject into the content of a course.”

The proposed regulations drop references to state learning standards; rather, the guidance language will focus on instruction in subject areas required by law.

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The Professor Adina Schick Affidavit and Yeshiva Education – Misleading Interpretation – Part I

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Misleading and Uninformed – Further Keeping Children Hostage – The Affidavit of Professor Adina Schick and What it Fails to Understand

We are posting the following letter and the Professor Adina Schick affidavit. Professor Shick is worthy or praise in her own right for the work she has done and all that she has accomplished. This is not intended to be a personal attack and should not be viewed as such. We have not researched Professor Schick’s upbringing, her background or anything else about her to see if she was a Yeshiva student, or if she is affiliated with an ultra-Orthodox community. 

As a general matter, her affidavit raises Common Core standards which in our view is problematic to begin with because there are few public schools in the State of New York that are keen on continuing the Common Core standards. Common Core was a faulty premise to begin with and a number of states have already done away with them. 

Her affidavit appears to disregard the fact that if students are given public funding for education they should be required to meet public requirements. It was clearly not an affidavit intended for that purpose. It was intended to ask a limited question: “Can children taught in Yeshiva be meeting the same standards as public school children?” Her response, in our view, is wholly misleading. 

Professor Schick fails to mention that the Talmud is written in Aramaic. Much of the studying in Yiddish (not English) may be a linguistic accomplishment for the children learning to understand these two languages but does nothing for children who need to function in country where English is the language of daily living. The children are not taught to understand science, mathematics, physics or anything about their physical realm except through the Aramaic words in the Talmud and while one might be able to extend some sort of imaginary parallel between the two, the focus within the Yeshiva context does not draw that parallel. 

We receive the following from a concerned reader and thought we should post: 

Dear Lost Messiah:

“This affidavit is extremely problematic and misleading. The fact remains, the Talmud is written in Aramaic. The language of instruction in the 39 chasidic yeshivas affected by the new guidelines is in yiddish. There is simply no way the Next Generation English Language Standards can be met through the study of Talmud in yiddish.”

 

Page 6:

14. In the middle school years, for example, Next Generation English Language Standards such as Literacy and Informational Text Reading Standards (e.g., Key Ideas and Details; Craft and Structure; Integration of Knowledge and Ideas); Speaking and Listening Standards (e.g., Comprehension and Collaboration; Presentation of Knowledge and Ideas); Language Standards (e.g., Vocabulary Acquisition and Use), as well as Reading Standards for Literacy in History/Social Studies and Reading Standards for Literacy in Science and Technical Subjects can be met. 

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Yeshiva vs. State – New York State and Substantially Similar Education

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“Further, the PEARLS Petitioners failed to submit evidence that they have suffered concrete constitutional harm from the issuance of the Updated Guidance. The record contains no evidence that the Updated Guidance’s interpretation and recommendations regarding substantial equivalence conflicts irreconcilably with Yeshiva curriculum; no evidence of what secular message the Yeshivas believe they are being forced to deliver in conflict with their beliefs; no evidence of what part or parts of the Yeshivas’ curricula they would be forced to alter; no evidence of what type of efforts, if any, Yeshivas may have to make to attain substantial equivalency; no evidence of how compliance with the substantial equivalence standard will impair their ability to practice their religion or impede their way of life; and no evidence of any current or impending impact on the operation of their schools. Accordingly, this matter may not be determined as a purely legal question.”